DIRISENA VENKATA JANIKAMMA Vs. DIRISENA VENKATESWARA RAO
HIGH COURT OF ANDHRA PRADESH
DIRISENA VENKATA JANIKAMMA
DIRISENA VENKATESWARA RAO
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(1.) This C.R.P. arises out of an application filed by the 1st respondent
here-in to adjudicate him. as an insolvent on the ground that he was unable
to pay his debts which amounted to Rs. 2,799-3-0. In B Schedule attached to the
petition, he disclosed that he had only assets of the value of Rs. 8. The creditors
the mainly his first wife and daughter who obtained decrees against him. The
third creditor shown in A Schedule of creditors is the State of Madras to whom a
sum of Rs. 398-7-0 is due by way of court-fee.
(2.) The District Munsif of Viziawada dismissed the application on the ground
that it was not a bona fide application but was made with the ulterior motive of evading
the maintenance of respondents 1 and 2 and the debt to the Government. On
appeal, the District Judge of Masulipatam set aside the order of the District Munsif
and adjudicated him an insolvent. The C.R.P. is filed by the wife and the daughter
challenging the correctness of the order of the District Judge.
The facts disclose that the 1st respondent is unable to pay his debts amounting
to more than Rs. 500. He therefore satisfies the requirements of section 10 of
the Provincial Insolvency Act. The view taken by the District Munsif that an
application might be dismissed on the ground that it is not a bona fide one is opposed
to the decision of the Privy Council in Chhatrapat Singh Dugar v. Kharag Sing, (1916) I.L.R. 44 Cal. 535. Sir
Lawrence Jenkins in delivering the judgment of the Judicial Committee expressed
himself in very clear and forcible terms as follows :
"It is to be regretted that the Courts in India allowed themselves to be influenced by this plea
instead of being guided to their decision by the provisions of the Act. In clear and distinct terms the
Act entitles a debtor to an order of adjudication when its conditions are satisfied. This does not
depend on the Court's discretion but is a statutory right ; and a debtor who brings himself properly
within the terms of the Act is not to be deprived of that right on so treacherous a ground of decision
as an 'abuse of the process of the Court'. This case illustrates the peril of this doctrine in India
or what has been treated by the Courts below as such an abuse appears to their Lordships in no-
way to merit this censure."
(3.) Lower down in the judgment, it is pointed out that their conclusion was in agreement
with the current authority in India where it had been rightly held that the
stage at which to visit with its due consequences any misconduct of a debtor is when
his application for discharge comes before the Court, and not on the initial proceeding.;
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